5 Things NOT Protected by Copyright Law

July 10, 2017

Chris Clark

There are many articles and discussions written on the material that copyright law protects, but an often overlooked topic in the discussion is what a copyright does NOT protect. The answers are not immediately obvious, as is evinced by the fact that I frequently hear people saying “I’m going to copyright [insert non-copyrightable thing here].” So what isn’t eligible for copyright protection? Here are five things:

1) Ideas. Copyright does not protect ideas; rather, it protects the expression of certain types of ideas. There are good public policy reasons for not allowing the monopolization of ideas. For example, it would be contrary to the public interest to give one person sole license to the “rags to riches” plot idea for a book or play to the exclusion of all others. The purpose of copyright law is to encourage creativity. Excluding mere ideas from copyright protection is consistent with this purpose because it requires authors to come up with their own unique expression of those ideas.

2) Names & Phrases. This frequently comes up in the entertainment world. For example, I sometimes hear bands say that hey want to “copyright” their band name. Similarly, individual names, business names, phrases, and titles of works are not copyrightable. No matter how much creativity went into the name, phrase, etc., it will not meet the basic requirement of copyright law: that it must contain a minimum amount of authorship to be protectible. Trademark is usually a great option to protect these types of things, provided that the name, phrase, etc. is used to sell a service or good.

3) Works without minimum amount of authorship. Names, phrases, and titles are not the only items to fall short of the minimum amount of authorship requirement. Recipes can fall prey, too, if they do not have a sufficient amount of literary expression in the directions or instructions. Similarly, restaurant menus skirt this line if they simply have a recitation of items available and no descriptions or other authored expressions.

4) Your sighting of bigfoot. I realize this is an absurd example, but my point is that just because you see or sing or visualize or speak something does not mean it is copyrightable. On the other hand, if you take a photograph, draw a likeness, sketch a scene, paint an oil masterpiece, record a song about, put on a dramatic re-enactment of, or make a sculpture of it, these tangible creative expressions would be protected under the Copyright Act.

5) Stuff in the public domain. There is a reason why anyone can print and sell a play by Shakespeare, re-write Pride and Prejudice to add zombies, or repurpose Mr. Rochester as a secret agent. All of these works are in the public domain and thus, no longer protected by copyright. Just as the Constitution giveth, the Constitution taketh away…eventually. Copyright protection is only designed for a limited time and once that time is up, short of literally an Act of Congress, works whose time is up become free for all to use, display, sell, copy, and do anything else otherwise protected by the Copyright Act.

Copyright protection is not solely the province of the artistic world. Businesses usually have surprising amounts of copyrightable material that they are not aware of and could register for greater protection—materials like reports, employee handbooks, audio and visual materials, etc.—as long as there is that minimum authorship required by the Act. If you would like our firm’s help with your literary, dramatic, musical, artistic, and certain other intellectual works, call (704) 837-0055 today!

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